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Let’s not make secure encryption illegal

Let’s not make secure encryption illegal

Restrictions are abhorrent and a draft bill in the Senate is overly broad and ambiguous. But if Congress insists on restrictions, let's add some critical limits.

The encryption security debate that is the fallout from the FBI-Apple debacle has taken a dangerous — and utterly predictable — turn. Congress has gotten involved, in a most unhelpful way.

A preliminary version of an encryption bill from Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and ranking member Dianne Feinstein (D-Calif.) would require device vendors that are hit with a court order to unencrypt data on their devices to either “provide such information or data to such government in an intelligible format or provide such technical assistance as is necessary to obtain such information or data in an intelligible format.”

In other words, vendors would be obligated to break their own encryption. The bill doesn’t address what happens when the vendor doesn’t have access to the decryption keys for data on its devices. The implication is that vendors would have to retain such data access so that they could readily comply with such court orders.

In short, truly secure encryption would be illegal.

And from there, it gets worse.

That’s because the draft bill never restricts such obligations to cases that are criminal or when the entity seeking the court order is an arm of law enforcement within the U.S. There is mention of “a government” a few times (and that term is defined as meaning “the Government of the United States and the government of the District of Columbia, or any commonwealth, territory, or possession of the United States, of an Indian tribe, or of any State or political subdivision thereof”). As with so much that comes from lawyers, that’s about as clear as a cup of week-old coffee.

Granted, this is a preliminary draft we’re talking about, but those are some rather essential elements to have left out.

This ambiguity raises some questions. What if the parties to a civil lawsuit wanted to access someone’s data? Would the proposed law be applicable to civil subpoenas?

The whole point of companies not retaining access to their customers’ encrypted data is to avoid all of these issues. If a vendor were able to access that data, it would be subject to endless litigation from anyone who feels like accessing it. A spouse in a divorce proceeding seeking to prove infidelity? A neighbor who slips on your driveway and wants to review your texts and emails on the off chance that you said something such as, “I don’t feel like shoveling my driveway today. If someone falls, let ‘em fall.” Fishing expeditions are popular with attorneys around the world.

Any restrictions on encryption are repugnant. But if Congress is going to insist on them, they need to be practical.

What kind of restrictions would be helpful? The U.S. government has huge resources and there is little encryption that it can’t crack on its own. So it shouldn’t be able to demand help until it has done all it can on its own — a court order must be a last resort. Any legislation should require that the government exhaust any and all possible avenues to access the data before resorting to such a drastic request — and that doesn’t mean just the low-cost and easy avenues. Forcing help from a vendor — asking it to betray its customers — can’t be an easy way out. (By the way, the legislation would need to specify penalties for vendors that merely feign assistance.)

Secondly, this shouldn’t apply to any old crime. National security has to be at stake — and it can’t be national security in the opinion of the FBI. A federal judicial panel would have to rule it to be a truly compelling matter of national security.

Thirdly, agencies should be restricted to a certain number of requests per year. That would reduce the chance that they would seek court orders for relatively trivial matters.

Finally, the legislation should state explicitly that no vendor would be asked to cripple security for all by, for example, installing a back door or retaining decryption keys.

Although I’m not in favor of restricting encryption, I do acknowledge one way that it can be truly beneficial. Security gets better when the companies responsible for it are actively trying to defeat the security measures they currently take.

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